8Duties of rail transport operators and other persons carrying out railway operations

(1) A rail transport operator who carries out railway operations must ensure, so far as is reasonably practicable, the safety of the railway operations.

Maximum penalty:

(a) in the case of a corporation (being a previous offender)—7,500 penalty units, or

(b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or

(c) in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or

(d) in the case of an individual (not being a previous offender)—500 penalty units.

Note.

Safety is defined in section 4 (1) as meaning the safety of people, including passengers, rail safety workers, other users of railways, users of rail or road crossings and the general public.

(2) Without limiting subsection (1), a rail transport operator contravenes that subsection if the operator fails to do any of the following:

(a) develop or implement, so far as is reasonably practicable, safety systems for the carrying out of the railway operations,

(b) ensure, so far as is reasonably practicable, that each rail safety worker who is to perform rail safety work in relation to the railway operations is of sufficient good health and fitness to carry out that work safely and is competent to undertake that work,

(c) ensure, so far as is reasonably practicable, that rail safety workers do not carry out rail safety work in relation to the operator’s rail safety operations, and are not on duty, while the prescribed concentration of alcohol is present in their blood or while under the influence of a drug,

(d) ensure, so far as is reasonably practicable, that rail safety workers who perform rail safety work in relation to the operator’s railway operations comply with the operator’s fatigue management program under this Act,

(e) provide, so far as practicable, adequate facilities for the safety of persons at any railway premises under the control or management of the operator,

(f) provide, so far as is reasonably practicable:

(i) such information and instruction to, and training and supervision of, rail safety workers as is necessary to enable those workers to perform rail safety work in relation to the operator’s railway operations in a way that is safe, and

(ii) such information to rail transport operators and other persons on railway premises under the control or management of the operator as is necessary to enable those persons to ensure their safety.

(3) Without limiting subsection (1), a rail infrastructure manager contravenes that subsection if the manager fails to do any of the following:

(a) ensure, so far as is reasonably practicable, that any design, construction, commissioning, use, installation, modification, maintenance or decommissioning of the manager’s rail infrastructure is done or carried out in a way that ensures, so far as is practicable, the safety of railway operations,

(b) establish, so far as is reasonably practicable, such systems and procedures for the scheduling, control and monitoring of railway operations that ensure, so far as is reasonably practicable, the safety of the manager’s railway operations.

(4) Without limiting subsection (1), a rolling stock operator contravenes that subsection if the rolling stock operator fails to do any of the following:

(a) provide or maintain rolling stock that, so far as is reasonably practicable, is safe,

(b) ensure, so far as is reasonably practicable, that any maintenance, commissioning, use, modification, construction, repair or cleaning of rolling stock is carried out in a way that, so far as is reasonably practicable, ensures safety,

(c) comply, so far as is reasonably practicable, with such rules and procedures for the scheduling, control and monitoring of rolling stock that have been established by a rail infrastructure manager in relation to the use of the manager’s rail infrastructure by the rolling stock operator,

(d) so far as is reasonably practicable, establish and maintain equipment, procedures and systems to minimise risks to safety of the operator’s railway operations,

(e) make arrangements for ensuring, so far as is reasonably practicable, safety in connection with the use, operation and maintenance of the operator’s rolling stock.

(5) This section applies to a person (other than a rail transport operator) who carries out railway operations in the same way as it applies to a rail transport operator, but does not apply if the person carries out those operations as a rail safety worker or an employee.

9Duties of designers, manufacturers, suppliers etc

(1) A person who designs, commissions, manufactures, supplies, installs or erects any thing that the person knows, or ought reasonably to know, is to be used as or in connection with rail infrastructure or rolling stock must:

(a) ensure, so far as is reasonably practicable, that the thing is safe if it used for a purpose for which it was designed, commissioned, manufactured, supplied, installed or erected, and

(b) carry out, or arrange the carrying out, of such testing and examination of the thing as may be necessary for compliance with this section, and

(c) take such action as is necessary to ensure, so far as is reasonably practicable, that there will be available in connection with the use of the thing adequate information about:

(i) the use for which the thing was designed, commissioned, manufactured, supplied, installed or erected, and

(ii) the results of any testing or examination referred to in paragraph (b), and

(iii) any conditions necessary to ensure, so far as is reasonably practicable, the thing is safe when it is used for a purpose for which it was designed, commissioned, manufactured, supplied, installed or erected.

Maximum penalty:

(a) in the case of a corporation (being a previous offender)—7,500 penalty units, or

(b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or

(c) in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or

(d) in the case of an individual (not being a previous offender)—500 penalty units.

(2) A person who decommissions any rail infrastructure or rolling stock must:

(a) ensure, so far as is reasonably practicable, that the decommission is carried out safely, and

(b) carry out, or arrange the carrying out, of such testing and examination as may be necessary for compliance with this section.

Maximum penalty:

(a) in the case of a corporation (being a previous offender)—1,500 penalty units, or

(b) in the case of a corporation (not being a previous offender)—1,000 penalty units, or

(c) in the case of an individual (being a previous offender)—150 penalty units or imprisonment for 2 years, or both, or

(d) in the case of an individual (not being a previous offender)—100 penalty units.

(3) For the purposes of subsection (1), if the person who supplies the thing:

(a) carries on the business of financing the acquisition of the thing by customers, and

(b) has, in the course of that business, acquired an interest in the thing solely for the purpose of financing its acquisition by a customer from a third person or its provision to a customer by a third person, and

(c) has not taken possession of the thing or has taken possession of it solely for the purpose of passing possession to that customer,

the reference in subsection (1) to the person who supplies that thing is instead taken to be a reference to the third person.

10Duties of rail safety workers

(1) A rail safety worker, when carrying out rail safety work, must:

(a) take reasonable care for his or her own safety, and

(b) take reasonable care for the safety of people who may be affected by the rail safety worker’s acts or omissions, and

(c) co-operate with the rail transport operator with respect to any action taken by the rail transport operator to comply with a requirement imposed by or under this Act or the regulations.

(2) A rail safety worker, when carrying out rail safety work, must not intentionally or recklessly interfere with or misuse anything provided to them by the rail operator:

(a) in the interests of safety, or

(b) under this Act or the regulations.

(3) A rail safety worker, when carrying out rail safety work, must not wilfully or recklessly place the safety of another person on or in the immediate vicinity of rail infrastructure at risk.

(4) In determining, for the purposes of subsection (1) (a), (b) or (c), whether a rail safety worker failed to take reasonable care, regard must be had to what the rail safety worker knew about the relevant circumstances.

Maximum penalty:

(a) in the case of a previous offender—45 penalty units, or

(b) in any other case—30 penalty units.

Note.

The duties and other requirements of this Act and the regulations do not preclude the operation of the work health and safety legislation. Section 175 provides for this and other matters relating to the relationship between this Act and the regulations and the work health and safety legislation.